Environmental law regularly operates in
areas complicated by high levels of scientific uncertainty. In the case of many
activities that entail some change to the environment, it is impossible to
determine precisely what effects the activity will have on the quality of the
environment or on human health. Often available scientific evidence provides us cause for
concern but does not give conclusive information. In such scenarios risk
assessment compels us to strike a balance between the need to protect health
and environment on one hand, and the foregone advantages of strict restrictions
that may turn out to be unwarranted. It is in this context the role for Precautionary
Principle emerges. While deciding the need and timing of the application of the
Precautionary Principle, it is important to clearly understand the principle
and its consequences.
The Precautionary Principle is one of the most
contentious principles in contemporary International legal developments. The
very fact that is, a principle of international environmental law has been
questioned by many legal scholars. However, this does not take away the fact
that the Precautionary
Principle continues to be applied widely across sectors both
internationally and nationally. The nature and scope of its application has
varied widely according to the context and sector within which it has been
applied.
‘Precautionary Principle’ plays a significant
role in determining whether developmental process is sustainable or not.
‘Precautionary Principle’ underlies sustainable development which requires that
the developmental activity must be stopped and prevented if it causes serious
and irreversible environmental damage. The emergence of Precautionary Principle
marks a shift in the international environmental jurisprudence- a shift from
assimilative capacity principle to Precautionary Principle.
MEANING AND CONCEPT
OF PRECAUTIONARY PRINCIPLE:
The Precautionary Principle is a tool for making
better health and environmental decisions. It aims to prevent harm from the
outset rather than manage it after the fact. In common language, this means
“better safe than sorry.” The Precautionary
Principle denotes a duty to prevent harm, when it is within
our power to do so, even when all the evidence is not in.[1] In
short, the “precautionary principle” is a notion which supports taking
protective action before there is complete scientific proof of a risk; that is,
action should not be delayed simply because full scientific information is
lacking.[2]
In
simple terms, the Precautionary
Principle conveys
the common-sense based advice to err on
the side of caution. The principle intends to prevent harm to humans,
environment, and eco-system at large. Before looking at some of the widely used
definitions of the Precautionary
Principle, it would
be helpful to understand the context and rationale. When the impacts of a particular activity – such as
emission of hazardous substances – are not completely clear, the general
presumption is to let the activities go ahead until the uncertainty is resolved
completely. The Precautionary Principle counters such general presumptions.
When there is uncertainty regarding the impacts of an activity, the Precautionary
Principle advocates action to anticipate and avert environmental harm. Thus,
the Precautionary Principle favors monitoring, preventing and/or mitigating
uncertain potential threats.
There are two widely referred
definitions of the Precautionary
Principle. One of the most important expressions of the Precautionary Principle
internationally is in the Rio Declaration from the 1992 United Nations
Conference on Environment and Development, also known as Agenda 21. The
declaration stated: ‘In order to protect
the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost effective measures to prevent environmental degradation’.
The
second definition is based on 1998 Wingspread Statement on the Precautionary
Principle and it states: “...When an
activity raises threats of harm to human health or the environment,
precautionary measures should be taken even if some cause and effect
relationships are not fully established scientifically. The process of applying
the precautionary principle must be open, informed and democratic and must
include potentially affected parties. It must also involve an examination of
the full range of alternatives, including no action. In this context the
proponent of an activity, rather than the public, should bear the burden of
proof.”
‘Precautionary Principle’ plays a significant
role in determining whether developmental process is sustainable or not.
‘Precautionary principle’ underlies sustainable development which requires that
the developmental activity must be stopped and prevented if it causes serious
and irreversible environmental damage. The emergence of Precautionary Principle
marks a shift in the international environmental jurisprudence- a shift from
assimilative capacity principle to Precautionary Principle.
Assimilative
Capacity Principle: Assimilative capacity principle
underlies earlier legal measures to protect the environment. Before the
Stockholm Conference 1972, the concept of ‘Assimilative Capacity’ was
recognized at the international level. As per this concept the natural
environment has the capacity to absorb the ill-effects of the pollution but
beyond a certain limit the pollution may cause damage to the environment
requiring efforts to repair it. Principles 6 of the Stockholm Declaration
contains assimilative capacity principle which assumes that science could
provide the policy makers with the necessary information and means to avoid
encroaching upon the capacity of the environment to assimilate impacts and it
presumes that relevant technical expertise would be available when environmental
harm is predicted and there would be sufficient time to act in order to avoid
such harm.
Assimilative
Capacity to Precautionary Principle – A Shift:
The uncertainty of scientific proof and its changing frontiers from time to
time have led to great changes in the environmental concepts during the period
between the Stockholm Conference of 1972 and the Rio Conference of 1992. A
basic shift to the approach to environmental protection occurred initially
between 1972 and 1982. Earlier the concept was based on the assimilative
capacity rule as revealed from principle 6 of the Stockholm Declaration. So, Precautionary Principle
is a principle which ensures that a substance or activity posing a threat to
the environment is prevented from adversely affecting it, even if there is no
conclusive scientific proof lining that particular substance or activity to the
environmental damage. The words ‘substance’ and ‘activity’ imply substance or
activity introduced as a result of human intervention.
ORIGIN AND HISTORY OF THE PRECAUTIONARY PRINCIPLE:
The
Precautionary
Principle is a
narrower concept than merely looking for safety. Precautionary ‘thinking’ has a
much longer history. The Late Lessons from Early Warnings report (2001)
mentions the example of Dr. John Snow who in 1854 recommended removing the
handle of a London water pump in order to stop a cholera epidemic. The evidence
for the causal link between the spread of cholera and contact with the water
pump was weak and not a proof beyond reasonable doubt. The report then mentions
a series of other examples, such as asbestos, where a precautionary approach
could have saved many lives if early warnings of potential at the time unproven
but still reducible harm had been taken more seriously.[3]
The
Precautionary
Principle, however,
dates from the 1970s. Some scholars mention a Swedish and some a German origin
of the Precautionary Principle.
The term ‘Precautionary Principle’
had its origin in the German word Vorsorgeprinzip[4].
In Germany the Precautionary Principle (‘Vorsorgeprinzip’) may be traced back to the first draft
of a bill (1970) aimed at securing clean air. The law was passed in 1974 and
covered all potential sources of air pollution, noise, vibrations and similar
processes. The most unambiguous elaboration of the Precautionary
Principle in German
environmental policy is from a later date and reads: ‘Responsibility towards
future generations commands that the natural foundations of life are preserved
and that irreversible types of damage, such as the decline of forests, must be
avoided.’ Thus the principle of precaution commands that the damages done to
the natural world (which surrounds us all) should be avoided in advance and in
accordance with opportunity and possibility.
BASIC FEATURES OF PRECAUTIONARY PRINCIPLE:
Five
Key Elements of the Precautionary Principle:
The Precautionary Principle represents a
paradigm shift in decision-making. It allows for five
key elements that can prevent
irreversible damage to people and nature[5]:
- Anticipatory Action:
There is a duty to take anticipatory action to prevent harm. Government,
business, and community groups, as well as the general public, share this
responsibility.
- Right to Know:
The community has a right to know complete and accurate information on
potential human health and environmental impacts associated with the
selection of products, services, operations, or plans. The burden to
supply this information lies with the proponent, not with the general
public.
- Alternatives Assessment:
An obligation exists to examine a full range of alternatives and select
the alternative with the least potential impact on human health and the
environment, including the alternative of doing nothing.
- Full Cost Accounting:
When evaluating potential alternatives, there is a duty to consider all
the reasonably foreseeable costs, including raw materials, manufacturing,
transportation, use, cleanup, eventual disposal, and health costs even if
such costs are not reflected in the initial price. Short and long-term
benefits and time thresholds should be considered when making decisions.
- Participatory Decision Process:
Decisions applying the Precautionary Principle must be transparent,
participatory, and informed by the best available science and other
relevant information.
WHY DO WE NEED PRECAUTIONARY PRINCIPLE:
The effects of careless and harmful activities have accumulated
over the years. Humans and the rest of the natural world have a limited
capacity to absorb and overcome this harm. There are plenty of warning signs:
·
Chronic diseases and conditions affect more than 100 million men,
women, and children in the World—more than a third of the population. Cancer,
asthma, Alzheimer's disease, autism, birth defects, developmental disabilities,
diabetes, endometriosis, infertility, multiple sclerosis, and Parkinson's
disease are becoming increasingly common.
· In laboratory animals, wildlife, and humans, considerable evidence
documents a link between levels of environmental contamination and
malignancies, birth defects, reproductive problems, impaired behavior, and impaired
immune system function. Scientists' growing understanding of how biological
systems develop and function leads to similar conclusions.
· Other warning signs are the dying off of plant and animal species,
the destruction of ecosystems, the depletion of stratospheric ozone, and the
likelihood of global warming.
Serious, evident effects such as endocrine disruption, climate
change, cancer, and the disappearance of species can seldom be linked
decisively to a single cause. Scientific standards of certainty may be
impossible to attain when causes and outcomes are multiple; latent periods are
long; timing of exposure is crucial; unexposed, “control” populations do not
exist; or confounding factors are unidentified.
PRECAUTIONARY PRINCIPLE IN PRACTICE:
Several
multilateral environmental agreements refer to precautionary principle in some
form, but rarely provide elaboration into specific guidance. Similarly, several
national level environmental initiatives invoke the precautionary principle.
Here, a brief overview of some such initiatives is provided.
MULTILATERAL ENVIRONMENTAL AGREEMENTS[6]:
a) Montreal Protocol on Substances that
Deplete the Ozone Layer, 1987 – ‘Parties to this Protocol, determined to protect the
ozone layer by taking precautionary measures to control equitably total global
emissions of substances that deplete it..’
b) The Rio Declaration on Environment
and Development, 1992
– ‘In order to protect the environment the precautionary approach shall be
widely applied by states according to their capabilities.’
c) UN Framework Convention on Climate
Change, 1992
– Article 3.3 says, “The Parties should take precautionary measures to
anticipate, prevent or minimize the causes of climate change and mitigate its
adverse effects.”
d)
Convention on Biological Diversity,
1992 – This Convention does not directly
use the term ‘precaution’ but interprets the ‘serious and irreversible’ harm
referred in the Rio Declaration in the context of biodiversity. It states, “where
there is a threat of significant reduction or loss of biological diversity,
lack of full scientific certainty should not be used as a reason for postponing
measures to avoid or minimize such a threat.”
e)
The Maastricht Treaty of European
Union, 1992
– “Community policy on the environment must aim at a high level of protection
and be based on the precautionary principle, as well as on the principle that
preventive action should be taken, that environmental damage should be
rectified at source and that the polluter should pay.”
f) Cartagena Protocol on Bio-safety,
2000 – “In
accordance with the precautionary approach the objective of this Protocol is to
contribute to ensuring an adequate level of protection in the field of the safe
transfer, handling and use of living modified organisms resulting from modern
biotechnology that may have adverse effects on the conservation and sustainable
use of biological diversity, taking into account risks to human health, and
specifically focusing on trans-boundary movements.”
g) Stockholm Convention on Persistent
Organic Pollutants (POPs), 2001 – The objective states, “Mindful of the precautionary
approach as set forth in Principle 15 of the Rio Declaration on Environment and
Development, the objective of this Convention is to protect human health and
environment from persistent organic pollutants.” This treaty operationalizes
precaution with explicit reference to it in the preamble, provisions for adding
POPs, and determination of best available technologies.
NATIONAL EXPERIENCES:
a) Asia – Even though several countries
have adopted well drafted environmental and biodiversity laws, reference to
‘precautionary principle’ is missing. For instance, Malaysia’s National
Biodiversity Policy makes explicit reference to the Convention on Biological Diversity (1992) but refrains from using
the term ‘precautionary principle’. Similarly other countries in the region,
Vietnam, Indonesia and Lao PDR also do not directly invoke precautionary
principle in their laws. On the other hand, in several countries (e.g., India
and Pakistan) the highest judicial authority has cited ‘precautionary
principle’ in its judgments.
b) Africa – Several countries have made
explicit reference to ‘precautionary principle’ in their laws. Examples include
the 1997 Mozambique Environment
Legislation, the 1996 General
Environmental Law of Cameroon, and South
Africa’s National Environmental Management Act.
d) Australia – The precautionary principle is
deeply rooted in Australia’s environmental policy, as reflected in the Inter-Governmental Agreement on Environment
of 1992, and the Commonwealth
Environment Protection and Biodiversity Conservation Act of 1999.
As
mentioned above, precaution is deeply entrenched in the environmental
legislations of several European countries. On the other hand, in the United
States of America precaution is rarely stated explicitly in any of its laws.
However, the precautionary the principles are well entrenched in several
protection acts such as Endangered
Species Act of 1973, and the Wild
Bird Conservation Act of 1992.
PRECAUTIONARY PRINCIPLE IN INDIAN CONTEXT:
In
India, there are lots of environmental regulations but environmental
regulations as Water (Prevention and
Control of Pollution) Act, 1974, the Air
(Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986 are
aimed at cleaning up pollution and controlling the amount of it released into
the environment. They regulate the harmful substances as they are emitted
rather than limiting their use or production in the first place. These laws are
based on the assumption that humans and ecosystem can absorb a certain amount
of contamination without being harmed. But the past experience shows that it is
very difficult to know what levels of contamination, if any, are safe and
therefore, it is better to err on the side of caution while dealing with the environment.[7]
The
Precautionary Principle has not been explicitly mentioned in any environmental
laws in India. However, the Supreme Court of India has invoked this principle
while passing judgments.
Building
on some of the near-precautionary approaches we saw in Indian legislation, in Punjab v. Modern Cultivators, Ladwa[8],
and Rajkot Municipal Corporation v.
Manjulben Jayantilal Nakum[9],
expectations for precaution are used as measures of tort liability. The Oleum
Gas Leak Case[10]
extends the principle of strict and absolute liability for those engaged in
hazardous activities, thus providing the necessary impetus for precautionary
action when dealing with toxic materials and allowing punishment for a failure
to err on the side of caution.
Precautionary
Principle does not find any place in judicial decisions in India before Vellore
Citizens Welfare Forum v. Union of India[11],
where Supreme Court referred the Brundtland
Report and other international documents in addition to Articles 21, 48A
and 51A(g) of the Constitution of India. And also taken into account the
legislative mandate “to protect and improve the environment” as found in
enactments like the Water (Prevention and
Control of Pollution) Act, 1974, the Air
(Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986.
Drawing
support from various Articles of the Constitution of India and arguing that the
Precautionary Principle is part of customary international laws (and hence part
of domestic laws), the Court has strongly supported the application of
precautionary principle. In fact, the Court has also applied the reversal of
burden of proof and demanded that the proponents of the activity must
demonstrate that the activity is environmentally benign. In this case the Court
explained the meaning of ‘Precautionary Principle’ in the context of municipal
law as under[12]:
i. Environmental
measures by the State Government and the Statutory Authorities – must
anticipate, prevent and attack the causes of environmental degradation.
ii.
Where
there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measures to prevent
environmental degradation.
iii. The
onus of proof is on the actor or the developer/industrialist to show that his
action is environmentally benign.
In
Taj
Trapezium Case[13]
the Supreme Court was dealing with the problem of protecting the ‘Taj Mahal’
from the pollution of nearby industries. The Court applied the ‘Precautionary
Principle’ as explained by it in Vellore case and observed – The environmental
measures must anticipate, prevent and attack the causes of environmental
degradation. The ‘onus of proof’ is on an industry to show that its operation
with the aid of coke/coal is environmentally benign. It is rather, proved
beyond doubt that the emissions generated by the use of coke/coal by the
industries in Taj Trapezium are the main polluters of the ambient air.
The
court ordered the industries to change over to the natural gas as an
industrial-fuel or stop functioning with the aid of coke/coal in the Taj
trapezium and relocate themselves as per the directions of the Court.
In
Calcutta
Tanneries Case[14]
applying the Precautionary Principle Court ordered the polluting tanneries
operating in the city of Calcutta (about 550 in numbers) to relocate themselves
from their present location and shift to the new leather complex set-up by the
West Bengal Government.
In
Badkhal
& Surajkund Lakes Case[15]
the Supreme Court held that the ‘Precautionary Principle’ made it mandatory for
the State Government to anticipate, prevent and attack the causes of
environmental degradation. The Court has no hesitation in holding that in order
to protect the two lakes from environmental degradation it was necessary to
limit the construction activity in the close vicinity of the lakes.
Even
though the Vellore judgment was followed in the subsequent decisions of the
Supreme Court, the Court felt the need to explain the meaning of the
‘Precautionary Principle’ in more detail and lucid manner so that Courts &
Tribunals or Environmental Authorities can properly apply the said principle in
the matters which might come before them. In A P Pollution Control Board v.
Prof. M. V. Nayudu[16]
the Supreme Court has reiterated its earlier stand on the precautionary
principle and demanded that the burden of proof should rest with the
person/entity proposing the activities (which may have harmful effects on the
environment and/or human beings).
In Narmada Bachao Andolan v. Union of India[17],
precautionary principle came to be considered by the majority of judges. The
Court also took the view that the doctrine is to be employed only in cases of
pollution when its impact is uncertain and non-negligible.
In S. Jagannath v. Union of India[18],
the Supreme Court held that sea beaches and sea coasts are gifts of nature and
any activity polluting the same cannot be permitted. The intensified shrimp
(prawn) farming culture industry by modern method in coastal areas was causing
degradation of mangrove ecosystem, depletion of plantation discharge of highly
polluting effluents and pollution of potable as well as ground water.
In KM Chinnappa, TN Godavarman Thirumalpad v. Union of
India[19], the Court recognized the
importance of India’s treaty obligations, placing the precautionary principle
in this case in the context of the Convention
on Biological Diversity. Despite India’s dualist legal tendencies and a
lack of implementing legislation at the time, the government was held
responsible for adhering to its treaty responsibilities that did not conflict
with domestic statutes. In this case, mining in the Kudremukh National Park was
deemed to be inconsistent with the precautionary nature of India’s treaty
requirements.
Despite these newly strengthened
precautionary statements, the principle has not achieved complete success in
the Indian legal system. In particular, precaution has been waived in cases of
dam building proposals. In 1992, the Tehri dam case suggested that a standard
of “quite safe” was sufficient despite the tremendous potential damage likely
if the dam broke. The Court seems to have moved on very little since then,
declining to apply precaution because the case is not about a “polluting
industry.” The Court suggests that the precautionary principle is only
applicable where the science is uncertain and damages cannot be calculated.
Somehow, it determines that the future impacts of dam construction on the
Narmada River are clear, requiring mitigation to balance the harm rather than
advance precaution. In addition to these judicial limitations on the
precautionary principle, some commentators suggest that the courts’
environmentalism is somewhat irrelevant in light of enforcement difficulties.[20]
CONCLUSION
The Precautionary Principle is relatable
to risk assessment and environmental impact assessment. Broadly, it postulates
that decisions that may have an impact on the environment need to allow for and
recognize conditions of uncertainty, particularly with respect to the possible
environmental consequences of those decisions. Under the circumstances, it is
essential to take preventive action or avoid effects, which may be damaging
even if this cannot be proven. In short, the “Precautionary Principle” is a
notion which supports taking protective action before there is complete
scientific proof of a risk; that is, action should not be delayed simply
because full scientific information is lacking.
The precautionary principle has been
viewed as an important element of environmental policy since the Rio
Declaration of 1992 and is widely believed to be favorable to the conservation
of existing natural environments and the current stock of biodiversity
including measures to avoid deterioration in these. Previously Precautionary
Principle is being used only on the matter of the Environmental pollution but
today this is being used to deal with the wild life protection, Biodiversity
Conservation, matters related to climate change, protection of shrimps etc.